### No. 82-110 INTHE SUPREMECOURTOF TIIE STATEOF MONTANA 1983

DEBRAJO

### HARDY, Plaintiff and Appellant,

LaBELLEISDISTRIEUTING CO., STEVEN E. 

### NEWSOM,Loss Prevention Manager; DAVID KOTKE,ShowroomManager, Defendants and Respondents.

Appeal from: District Court of the Thirteenth JudicialDistrict, Inand for the County ofYellowstone,TheHonorable Charles Luedke, Judgepresiding.

Counsel of Record:

ForAppellant: Joseph

### P. Hennessey, Billings,Montana

For Respondents: James

### L. Jones,Billings,Montana

Submittedon Briefs: January 27, 1953 

### Decided: March 31, 1983

8 

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ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.
Plaintiff

### ,Debra JoHardy brought this action against defendants for false imprisonment. The District Court of the ThirteenthJudicial 

### District, Yellowstone County, issued judgment aEter a jury verdict in favor of defendants and plaintiff appeals. Defendant, LaBelleIsDistributing Company (LaBelleIs)

### , hired Hardy as a temporary employee on December 

### 1, 1978. She was assigned duty as a sales clerk in the jewelry department. On December 9, 1978, another employee for LaBelleIs, Jackie Renner, thought she saw Hardy steal one of the watches that JAaBellelshad in stock. Jackie Renner reported her belief to LaBelle 

### s showroom manager thatevening. On the morning of December 10, Hardy was approached by the assistant manager of LaBellels jewelry department and told that allnew employees 

### were given a tour of the store. He showed her into the showroom manager's office and then left, closing the door behind him. There 

### is conflicting testimony concerning who was present in the showroom managerIs office when Hardy arrived. Hardy 

### testi£ ied that David Kotke

## , the showroom manager, Steve 

### Newsom, the store's loss prevention manager, and a uniformed policeman

were present. Newsom and one of the policemen in the 

### room testified that another policeman, instead of Kotke

## , was present. Hardy was told that she had been accused of stealing a watch. Hardy denied taking the watch and agreed to take a lie detector test. According to conflicting testimony, the meeting lasted approximately from twenty 

### to forty-five minutes. Hardy took the lie detector test which supported her statement that she had not taken the watch. The showroom manager apologized toHardy the next morning and told her that she was still welcome 

### to work atLaBellels. The employee who reported seeing Hardy take the watch also apologized. The two employees then argued briefly, and Hardy leftthe store.Hardy brought this action claiming thatdefendants had wrongfullydetained her against herwillwhen shewas questioned about thewatch. On appealHardy raises basically 

### two issues 1. Whether the evidence 

### is sufficient

### to support the verdict and judgment; and 2. Whether the District Court erred in the issuance of 

### its instructions. The 

### two key elements of false imprisonment 

### are the restraint of an individual against his 

### will and the unlawfulness of such restraint. 32 Am.Jur.2d, FalseImprisonment, §5. The individual may be restrained by 

### acts 

### or merely by words which he fears to disregard. Panisko v. Dreibelbis (1942), 113 Elont. 310, 124 P.2d 997; Kroeger v. Passmore (1908), 36 Mont. 504, 93 P. 805. 

### Here,. there is ample evidence 

### to support the jury's finding thatHardy was not unlawfully restrained againsther will. While Hardy stated that she felt compelled 

### to remain in the showroom manager's office, she 

### also admitted that she wanted to stay and clarify the situation. She did not ask to leave. She was not told she could not leave. No threat of force 

### or otherwise 

### was made 

### to compel her 

### to stay. Although she followed the assistant manager into the off

### ice under pretense of 

### a tour, she testified at

### trial that she would have followed him voluntarily if she had known the truepurpose of the meeting and that

### two policemen 

### were in the 

### room. Under these circumstances, the jury could easily find that Hardy was not detained against her 

### will. See also, Meinecke v. Skaggs (1949), 123 Mont. 308, 213 P.2d 237, and Robertsv. Coleman (1961), 228 Or. 286, 365 P.2d 79. Hardy also claims the District Court erred by issuing court's instructions 10, 12, 13, and 14, and by refusing herproposed instructions 7, 11, 17, 19, and 30. Hardy argues that the court's instructions failed to comply with the facts and law, which 

### were 

### more accurately represented in her proposed instructions

# .Where jury instructions, taken 

### as 

### a whole, 

### state the 

### law applicable 

### to the case, a party cannot 

### claim reversible 

### error 

### as to the giving of certain instructions. Goodnough v. State (1982)

## , Mont

# . ,647 P.2d 364, 39 St.Rep. 1170. Here, the court's instructions adequately stated the law on false imprisonment. Appellant's proposed instructions 7, 11, 17, 19, and 30 either reiterated the court's instructions or were inappropriate

## , and theref

### ore were properly refused by the DistrictCourt. Instruction 10 given by the 

### District Court provided that there was no false imprisonment if the plaintiff voluntarily complied with the request 

### to remain in the showroom manager's office. This 

### is one of the key elements of false imprisonment and was properly given. 32 Arn.Jur.2df False Imprisonment, 

## §lo; Griffinv. Clark (1935),55 Idaho 364, 42 P.2d 297. Court's instruction 12 provided that an employer upon 

### reasonable causemay request 

### a police investigation. Instruction 13 provided that a store employee may temporarily detain another person 

### to investigate a theft only upon probable cause. These instructions paraphrase the standard rule requiring probable cause before a person may be detained. Duran v. Buttrey Food, Inc. (1980), Mont

# . , 616 P.2d 327, 38 St.Rep. 1545. Appellant failed to object to instruction 14, and finding no plain 

### error, we need not review the instruction. StateHighway Commission v. Beldon (1975), 166Mont. 246, 531P.2d 1324. Finding substantial evidence to support the judgment and no
error in the issuance of the instructions, the District Court's judgment 

### is a£firmed

# .WeConcur: 

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# &@&, Chief Justice